CRIMES (SENTENCING PROCEDURE) ACT 1999 - SCHEDULE 2
CRIMES (SENTENCING PROCEDURE) ACT 1999 - SCHEDULE 2
SCHEDULE 2 – Savings, transitional and other provisions
Part 1 - Preliminary
1 Savings and transitional regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts--Crimes (Sentencing Procedure) Act 1999Crimes Legislation Amendment (Sentencing) Act 1999Crimes Legislation Amendment (Existing Life Sentences) Act 2001Justice Legislation Amendment (Non-association and Place Restriction) Act 2001 (to the extent only to which it amends this Act)Criminal Legislation Amendment Act 2001 , to the extent that it amends this ActCrimes (Sentencing Procedure) Amendment (General Sentencing Principles) Act 2002Crimes Legislation Amendment (Periodic and Home Detention) Act 2002Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002Crimes Legislation Amendment (Criminal Justice Interventions) Act 2002Crimes Legislation Amendment Act 2002 (but only to the extent that it amends this Act)Crimes Legislation Amendment (Parole) Act 2003 , to the extent that it amends this ActCrimes Legislation Amendment Act 2003Crimes Legislation Further Amendment Act 2003 (but only to the extent that it amends this Act)Courts Legislation Amendment Act 2004 (but only to the extent that it amends this Act)Crimes (Sentencing Procedure) Amendment (Victim Impact Statements) Act 2004Crimes (Sentencing Procedure) Amendment Act 2006Crimes and Courts Legislation Amendment Act 2006 , to the extent that it amends this ActCrimes (Sentencing Procedure) Amendment Act 2007Crimes (Sentencing Procedure) Amendment (Life Sentences) Act 2008Crimes (Sentencing Procedure) Amendment (Victim Impact Statements) Act 2008Crimes Amendment (Sexual Offences) Act 2008Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 (but only to the extent that it amends this Act or an Act amended by Schedule 5 to that Act)Crimes (Sentencing Procedure) Amendment Act 2010 (but only to the extent that it amends this Act)Courts and Other Legislation Amendment Act 2011 (but only to the extent that it amends this Act)Crimes (Sentencing Procedure) Amendment (Children in Vehicles) Act 2011Criminal Case Conferencing Trial Repeal Act 2012Graffiti Legislation Amendment Act 2012 (but only to the extent that it amends this Act)any Act that amends this Act
(2) Such a provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later day.
(3) To the extent to which such a provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as--(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of that publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of that publication.
Part 2 - Provisions consequent on enactment of Crimes (Sentencing Procedure) Act 1999
Division 1 - Periodic Detention of Prisoners Act 1981
2 Definitions
In this Division--
"1981 Act" means the Periodic Detention of Prisoners Act 1981 , as in force
immediately before the appointed day.
"appointed day" means the day on which Part 5 of this Act commences.
3 Periodic detention orders
Any order for periodic detention that, immediately before the appointed day, was in force under the 1981 Act--
(a) is taken to be a periodic detention order within the meaning of this Act, and
(b) is taken to be subject to the same conditions as those to which it was subject immediately before that day.
4 Undertakings
Any undertaking entered into under section 5 (1B) of the 1981 Act is taken to be an undertaking entered into under section 66 of this Act.
5 Ancillary orders
Any order that, immediately before the appointed day, was in force under section 5 (6) of the 1981 Act is taken to be an order of the same kind made under this Act, and may be amended or revoked accordingly.
6 Suitability reports
A suitability report prepared under section 5 (7) of the 1981 Act is taken to be an assessment report prepared under section 69 of this Act.
7 Warrants
Any warrant that, immediately before the appointed day, was in force under section 6 of the 1981 Act is taken to be a warrant in force under this Act, and may be enforced accordingly.
8 Notices
Any notice served on a person before the appointed day under section 7 of the 1981 Act is taken to have been served on the person under section 72 of this Act.
Division 2 - Home Detention Act 1996
9 Definitions
In this Division--
"1996 Act" means the Home Detention Act 1996 , as in force immediately before
the appointed day.
"appointed day" means the day on which Part 6 of this Act commences.
10 Home detention orders
Any home detention order that, immediately before the appointed day, was in force under the 1996 Act--
(a) is taken to be a home detention order within the meaning of this Act, and
(b) is taken to be subject to the same conditions as those to which it was subject immediately before that day.
11 Assessment reports
Any assessment report prepared under section 10 of the 1996 Act is taken to be an assessment report prepared under section 81 of this Act.
12 Undertakings
Any undertaking entered into under section 12 of the 1996 Act is taken to be an undertaking entered into under section 78 of this Act.
Division 3 - Community Service Orders Act 1979
13 Definitions
In this
Division--
"1979 Act" means the Community Service Orders Act 1979 , as in force
immediately before the appointed day.
"appointed day" means the day on which Part 7 of this Act commences.
14 Community service orders
Any community service order that, immediately before the appointed day, was in force under the 1979 Act--
(a) is taken to be a community service order within the meaning of this Act, and
(b) is taken to be subject to the same conditions as those to which it was subject immediately before that day.
15 Suitability reports
Any report prepared under section 6 of the 1979 Act is taken to be an assessment report prepared under section 89 of this Act.
16 Notices
Any copy of a community service order served on a person before the appointed day under section 12 of the 1979 Act is taken to be notice of the order served in accordance with section 93 of this Act.
Division 4 - Sentencing Act 1989
17 Definitions
In this Division--
"1989 Act" means the Sentencing Act 1989 , as in force immediately before the
appointed day.
"appointed day" means the day on which Part 4 of this Act commences.
18 Parole orders
Any parole order that, immediately before the appointed day, was in force under the 1989 Act--
(a) is taken to be a parole order within the meaning of this Act, and
(b) is taken to be subject to the same conditions as those to which it was subject immediately before that day.
19 Sentences of imprisonment
(1) The term of a sentence ascertained under the 1989 Act is taken to be the term of the sentence determined under this Act.
(2) Any minimum term determined under the 1989 Act is taken to be a non-parole period determined under this Act.
(3) Any additional term determined under the 1989 Act is taken to be that part of a sentence of imprisonment whose term has been determined under this Act as occurs after the expiry of the non-parole period for the sentence.
(4) Any fixed term determined for a sentence under the 1989 Act is taken to be the term of the sentence determined under this Act.
20 Information about minimum term
Any information given by a court for the purposes of section 8 of the 1989 Act is taken to have been given for the purposes of section 48 of this Act.
21 Applications for determination of minimum terms for existing life sentences
(1) Any application under section 13A of the 1989 Act that had been made, but not determined, before the appointed day is to be determined in accordance with Schedule 1 to this Act.
(2) In particular, any such application that had been made before 8 May 1997 under section 13A of the 1989 Act but had not been determined as at the date of assent to the Crimes (Sentencing Procedure) Amendment (Existing Life Sentences) Act 2005 , being an application made by an offender who is the subject of a non-release recommendation--(a) is not to be determined until the offender has served at least 30 years of the existing life sentence to which the application relates, and(b) is to be disposed of in accordance with clause 4 (3) of Schedule 1 to this Act, and not otherwise.
(3) Any determination in force immediately before the appointed day under section 13A (4) of the 1989 Act, or made after the appointed day under that subsection, is taken to be a determination under clause 4 of Schedule 1 to this Act.
(4) Any direction in force immediately before the appointed day under section 13A (8) of the 1989 Act, or given after the appointed day under that subsection, is taken to be a direction under clause 6 of Schedule 1 to this Act.
22 Existing licences and existing sentences
(1) Schedule 2 to the 1989 Act, and the 1989 Regulation, continue to have effect in relation to--(a) an existing licence, and(b) an existing sentence, and(c) a person the subject of an existing licence or existing sentence,as if this Act and the Crimes Legislation Amendment (Sentencing) Act 1999 had not been enacted.
(2) In this clause--
"1989 Regulation" means the Sentencing (Savings and Transitional Provisions) Regulation 1989 .
"existing licence" has the same meaning as it has in the 1989 Act.
"existing sentence" means a sentence of imprisonment to which a person was subject immediately before the repeal of the Probation and Parole Act 1983 .
Division 5 - Criminal Procedure Act 1986
23 Definitions
In this Division--
"1986 Act" means the Criminal Procedure Act 1986 , as in force immediately
before the appointed day.
"appointed day" means the day on which Part 3 of this Act commences.
24 Victim impact statements
A victim impact statement prepared before the appointed day in accordance with the requirements of Part 6A of the 1986 Act is taken have been prepared in accordance with the requirements of Division 2 of Part 3 of this Act.
25 Lists of additional charges
A document prepared before the appointed day in accordance with the requirements of section 21 of the 1986 Act is taken have been prepared in accordance with the requirements of section 32 of this Act.
26 Ancillary orders
The power of a court to make ancillary orders under section 34 of this Act in relation to a further offence that has been taken into account by the court under Division 3 of Part 3 of this Act extends to an offence that has been taken into account by the court under Part 6 of the 1986 Act.
27 Guideline judgments
Division 4 of Part 3 applies to guideline judgments given under Part 8 of the 1986 Act in the same way as it applies to guideline judgments given under that Division.
Division 6 - Crimes Act 1900
28 Definition
In this Division--
"1900 Act" means the Crimes Act 1900 , as in force immediately before the
appointed day.
"appointed day" means--
(a) in relation to clause 29 (1), the day on which Schedule 3 [6[#93] to the Crimes Legislation Amendment (Sentencing) Act 1999 commences, or
(b) in relation to clause 29 (2), the day on which Schedule 3 [7[#93] to the Crimes Legislation Amendment (Sentencing) Act 1999 commences.
29 Recognizances
(1) Any recognizance that, immediately before the commencement of Schedule 3 [6[#93] to the Crimes Legislation Amendment (Sentencing) Act 1999 , was in force under section 547 of the 1900 Act continues to have effect, and may be enforced in accordance with that section, as if that section had not been repealed.
(2) Any recognizance that, immediately before the commencement of Schedule 3 [7[#93] to the Crimes Legislation Amendment (Sentencing) Act 1999 , was in force under section 556A or 558 of the 1900 Act continues to have effect, and may be enforced in accordance with Part 15 of that Act, as if that Part had not been repealed.
Division 7 - Justices Act 1902
30 Definition
In this Division--
"1902 Act" means the Justices Act 1902 , as in force immediately before the
appointed day.
"appointed day" means the day on which Schedule 4.35 [17[#93] to the Crimes
Legislation Amendment (Sentencing) Act 1999 commences.
31 Arrest warrants for absent offenders
Any warrant that, immediately before the commencement of Schedule 4.35 [17[#93] to the Crimes Legislation Amendment (Sentencing) Act 1999 , was in force under section 80AA of the 1902 Act is taken to be a warrant under section 25 of this Act, and may be enforced accordingly.
Division 8 - General
32 Definitions
In this Division--
"appointed day" means the day appointed under section 2 for the commencement
of the provision of this Act in relation to which that expression is used.
"old legislation" means--
(a) any Act or instrument repealed by Schedule 1 to the Crimes Legislation Amendment (Sentencing) Act 1999 , as in force immediately before its repeal, and
(b) any Act or instrument amended by Schedule 2, 3, 4 or 5 to the Crimes Legislation Amendment (Sentencing) Act 1999 , as in force immediately before its amendment.
33 Power to fine for certain offences
Section 15 of this Act does not apply to an offence committed before 17 March 1991 (the date on which section 440AA of the Crimes Act 1900 commenced) so as to enable a fine to be imposed on an offender in addition to any other penalty imposed on the offender for the same offence.
34 Taking of photographs and fingerprints
Section 63 of this Act extends to offenders sentenced before the appointed day.
35 Delegations
Any delegation that, immediately before the appointed day, was in force under a provision of the old legislation for which there is a corresponding provision in this Act is taken to be a delegation in force under the corresponding provision of this Act.
36 Construction of certain references
Subject to the regulations, in any Act or instrument--
(a) a reference to a provision of the old legislation for which there is a corresponding provision in this Act extends to the corresponding provision of this Act, and
(b) a reference to any act, matter or thing referred to in a provision of the old legislation for which there is a corresponding provision in this Act extends to the corresponding act, matter or thing referred to in the corresponding provision of this Act.
37 General saving
Subject to the regulations--
(a) anything begun before the appointed day under a provision of the old legislation for which there is a corresponding provision in this Act may be continued and completed under the old legislation as if the Crimes Legislation Amendment (Sentencing) Act 1999 had not been enacted, and
(b) subject to paragraph (a), anything done under a provision of the old legislation for which there is a corresponding provision in this Act (including anything arising under paragraph (a)) is taken to have been done under the corresponding provision of this Act.
Part 3 - Provisions consequent on enactment of Crimes Legislation Amendment (Existing Life Sentences) Act 2001
38 Definition
In this Part,
"the 2001 amending Act" means the Crimes Legislation Amendment (Existing Life
Sentences) Act 2001 .
Part 4 - Provisions consequent on enactment of Criminal Procedure Amendment (Pre-trial Disclosure) Act 2001
40 Application of section 22A (Power to reduce penalties for pre-trial disclosure)
Section 22A extends to proceedings for an offence that were instituted (but not finally determined) before the commencement of that section.
Part 5 - Provisions consequent on enactment of Criminal Legislation Amendment Act 2001
41 Validation of guideline judgments
Any guideline judgment given by the Court of Criminal Appeal before the commencement of section 37A that would have been validly given had section 37A commenced before it was given has, and is taken always to have had, the same force and effect as it would have had if section 37A had commenced before it was given.
42 Application of amendments
Section 37B extends to any guideline judgment given before the commencement of that section (whether under Division 4 of Part 3 or apart from that Division).
43 Parole orders
Section 51 (1B) (b) applies to a parole order regardless of whether the order was made before, on or after the commencement of that provision.
Part 6 - Provisions consequent on enactment of Justice Legislation Amendment (Non-association and Place Restriction) Act 2001
44 Application of section 17A
Section 17A, as inserted by the Justice Legislation Amendment (Non-association and Place Restriction) Act 2001 , does not apply to any offence committed before the commencement of that section.
Part 7 - Provisions consequent on enactment of Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002
45 Offences to which amending Act applies
(1) Except as provided by subclause (2), the amendments made to this Act by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 do not apply to offences committed before the commencement of the amendments.
(2) Sections 3A and 21A of this Act, as inserted by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 , apply to the determination of a sentence for an offence whenever committed, unless--(a) a court has convicted the person being sentenced of the offence, or(b) a court has accepted a plea of guilty to the offence and the plea has not been withdrawn,before the commencement of the section concerned.
(3) Section 21A of this Act, as in force immediately before its repeal by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 , continues to apply as if it had not been repealed to the determination of a sentence for an offence in respect of which--(a) a court has convicted the person being sentenced of the offence, or(b) a court has accepted a plea of guilty to the offence and the plea has not been withdrawn,before that repeal.
(4) In this clause--
"convict" includes make a finding of guilt.
46 Application of existing guideline judgments
A guideline judgment made before the commencement of any amendment to this Act made by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 continues to have effect, except to the extent to which it is inconsistent with this Act, as so amended.
Part 8 - Provisions consequent on Crimes Legislation Amendment (Criminal Justice Interventions) Act 2002
47 Application
An amendment to this Act made by the Crimes Legislation Amendment (Criminal Justice Interventions) Act 2002 extends to an offence committed before the commencement of the amendment unless proceedings (other than committal proceedings) for the offence were commenced before the commencement of the amendment.
Part 9 - Provisions consequent on enactment of Crimes Legislation Amendment Act 2002
48 Application of amendments to sections 55 and 56
(1) An amendment to section 55 or 56 made by the Crimes Legislation Amendment Act 2002 applies only to a new sentence of imprisonment imposed in relation to an offence committed after the commencement of the amendment, and so applies whether or not the old sentence was imposed before the commencement of the amendment.
(2) In subclause (1),
"new sentence of imprisonment" means a sentence of imprisonment imposed on an offender who, when being sentenced, is subject to another sentence of imprisonment that is yet to expire, or in respect of whom another sentence of imprisonment has been imposed in the same proceedings, and
"old sentence of imprisonment" means that other sentence of imprisonment (that term having the extended meaning given by section 56 (6), as inserted by the Crimes Legislation Amendment Act 2002 ).
49 Application of amendment to section 58
The amendment to section 58 made by the Crimes Legislation Amendment Act 2002 applies only to a new sentence (within the meaning of that section) imposed in relation to an offence committed after the commencement of the amendment, and so applies whether or not the old sentence (within the meaning of that section, as amended by the Crimes Legislation Amendment Act 2002 ) was imposed before the commencement of the amendment.
Part 10 - Provisions consequent on enactment of Crimes Legislation Amendment (Parole) Act 2003
50 Application of section 51 (1AA)
Section 51 (1AA), as inserted by the Crimes Legislation Amendment (Parole) Act 2003 , does not apply to any parole order made by a court under section 50 before the commencement of that subsection.
Part 11 - Provisions consequent on enactment of Crimes Legislation Amendment Act 2003
51 Application of amendments
(1) Section 65B, as inserted by the Crimes Legislation Amendment Act 2003 , does not apply to proceedings commenced before the commencement of that section.
(2) For the purposes of this clause, proceedings on indictment following an accused person's committal for trial for an offence are taken to have commenced when committal proceedings for the offence were first commenced.
(3) Section 65B, as inserted by the Crimes Legislation Amendment Act 2003 , extends to offences committed before the commencement of that section and, for that purpose, a
"prescribed sexual offence" is taken to include--(a) an offence committed before 13 June 2003 under Division 10 or 10A of Part 3 of the Crimes Act 1900 , as in force from time to time before that date, being--(i) an offence committed on a person under the age of 16 years, or(ii) an offence, committed on a person of any age, the elements of which include sexual intercourse (as defined by section 61H of that Act), homosexual intercourse (as defined by section 78G of that Act) or carnal knowledge (as defined by section 62 (2) of that Act), and(b) an offence committed before 17 March 1991 under section 61B, 61C, 61D, 61E or 61F of the Crimes Act 1900 , as in force from time to time before that date, being--(i) an offence committed on a person under the age of 16 years, or(ii) an offence, committed on a person of any age, the elements of which include sexual intercourse (as defined by section 61A of that Act), and(c) the offence of rape committed before 14 July 1981 as referred to in section 63 or 65 of the Crimes Act 1900 , as in force from time to time before that date.
Part 12 - Provisions consequent on enactment of Crimes Legislation Further Amendment Act 2003
52 Power of Local Court to impose further consecutive sentences
(1) Section 58, as in force immediately before its substitution by the Crimes Legislation Further Amendment Act 2003 , continues to apply to offences for which proceedings had commenced before its substitution.
(2) Section 58, as substituted by the Crimes Legislation Further Amendment Act 2003 , extends to offences committed before the commencement of that section, other than offences for which proceedings had commenced before its substitution.
Part 13 - Provisions consequent on enactment of Crimes (Sentencing Procedure) Amendment (Victim Impact Statements) Act 2004
53 Victim impact statements
The amendments made to sections 27 and 28 of this Act by the Crimes (Sentencing Procedure) Amendment (Victim Impact Statements) Act 2004 extend to offences committed before the commencement of those amendments, whether or not proceedings were commenced before that commencement.
Part 14 - Provision consequent on enactment of Courts Legislation Amendment Act 2004
54 Prescribed forms
A form to the effect of a form prescribed for the purpose of section 32, 62, 66, 73 or 78 by a regulation in force immediately before the commencement of Schedule 4 to the Courts Legislation Amendment Act 2004 may be used for the purpose of the relevant section until such time as regulations are made under section 103 (2).
Part 15 - Provisions consequent on enactment of Crimes (Sentencing Procedure) Amendment Act 2006
55 Existing offences and proceedings
The amendments made to this Act by the Crimes (Sentencing Procedure) Amendment Act 2006 apply to the determination of a sentence for an offence whenever committed, unless--
(a) the court has convicted the person being sentenced of the offence, or
(b) a court has accepted a plea of guilty and the plea has not been withdrawn,before the commencement of that Act.
Part 16 - Provisions consequent on enactment of Crimes and Courts Legislation Amendment Act 2006
56 Application of amendments
(1) The amendments made to sections 12 and 99 by the Crimes and Courts Legislation Amendment Act 2006 , and section 10A, as inserted by that Act, extend to proceedings commenced (but not concluded) before the commencement of the amendments.
(2) The amendments made to section 99 by the Crimes and Courts Legislation Amendment Act 2006 extend to proceedings in respect of the revocation of a good behaviour bond entered into before the commencement of the amendments, subject to subclause (3).
(3) The amendments to section 99 do not require a non-parole period in respect of a sentence of imprisonment to be set on the revocation of a good behaviour bond entered into before the commencement of the amendments if the non-parole period was set at the time that the sentence was suspended.
Part 17 - Provisions consequent on enactment of Crimes (Sentencing Procedure) Amendment Act 2007
57 Existing offences and proceedings
The amendments made to this Act by the Crimes (Sentencing Procedure) Amendment Act 2007 apply to the determination of a sentence for an offence whenever committed, unless--
(a) the court has convicted the person being sentenced of the offence, or
(b) a court has accepted a plea of guilty and the plea has not been withdrawn,before the commencement of the amendments.
Part 18 - Provisions consequent on enactment of Crimes (Sentencing Procedure) Amendment (Victim Impact Statements) Act 2008
58 Application of amendments
(1) An amendment made to this Act by the Crimes (Sentencing Procedure) Amendment (Victim Impact Statements) Act 2008 applies in respect of any victim impact statement that is first received by a court after the commencement of the amendment.
(2) This Act, as in force immediately before any such amendment, continues to apply in respect of any victim impact statement received by a court before the commencement of the amendment.
Part 19 - Provisions consequent on enactment of Crimes Amendment (Sexual Offences) Act 2008
59 Existing offences and proceedings
(1) An amendment made to Part 3 of this Act by the Crimes Amendment (Sexual Offences) Act 2008 applies to the determination of a sentence for an offence whenever committed, unless--(a) a court has convicted the person being sentenced of the offence, or(b) a court has accepted a plea of guilty and the plea has not been withdrawn,before the commencement of the amendment.
(2) In this clause--
"convict" includes make a finding of guilt.
60 Standard non-parole periods
(1) An amendment made to section 54D by the Crimes Amendment (Sexual Offences) Act 2008 does not affect any sentence imposed before the commencement of that amendment.
(2) The Table to Division 1A of Part 4, as in force immediately before its amendment by the Crimes Amendment (Sexual Offences) Act 2008 , continues to apply in respect of an offence against section 66A of the Crimes Act 1900 committed before the commencement of the amendment.
Part 20 - Provisions consequent on enactment of Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010
61 Savings for periodic detention orders
(1) The repeal of section 6 (Periodic detention) does not affect the continuity of operation of a periodic detention order made before the repeal of that section. Such an order continues in force despite the repeal of that section, subject to this Act and the Crimes (Administration of Sentences) Act 1999 .
(2) This Act and each amended Act (and the regulations under this Act and each amended Act) continue to apply to and in respect of the following as if the Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 had not been enacted--(a) a periodic detention order made before the repeal of section 6,(b) a person subject to such an order,(c) the revocation of such an order and the reinstatement of such an order.
(3) In this clause,
"amended Act" means an Act amended by Schedule 5 to the Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 .
Part 21 - Provision consequent on enactment of Crimes (Sentencing Procedure) Amendment Act 2010
62 Application of amendments
(1) In this Part--
"amending Act" means the Crimes (Sentencing Procedure) Amendment Act 2010 .
(2) An amendment made by the amending Act applies to the determination of a sentence for an offence whenever committed, unless--(a) a court has convicted the person being sentenced of the offence, or(b) a court has accepted a plea of guilty and the plea has not been withdrawn,before the commencement of the amendment concerned.
Part 21A - Provisions consequent on enactment of Courts and Other Legislation Amendment Act 2011
62A Effect of amendments
Without limiting section 53 of the Interpretation Act 1987 , the amendment of section 100I by the Courts and Other Legislation Amendment Act 2011 does not affect the appointment of any existing member of the Sentencing Council (including the appointment of the existing Chairperson of the Council).
Part 21B - Provisions consequent on repeal of Criminal Case Conferencing Trial Act 2008
62B Definitions
In this Part--
"repeal date" means the date of assent to the
Criminal Case Conferencing Trial Repeal Act 2012 .
"repealed Act" means the Criminal Case Conferencing Trial Act 2008 , as in
force immediately before its repeal.
62C Effect of repeal of Act
Except as provided by this Part, the repealed Act ceases to apply on and from the repeal date to and in respect of any proceedings for an offence to which the repealed Act applied immediately before the repeal date (regardless of what steps have been taken with respect to any compulsory conference under the repealed Act in the proceedings).
62D Continued operation of sentencing discount arrangements
(1) Part 4 (Sentences--guilty pleas) of the repealed Act continues to apply (as if it had not been repealed) to and in respect of the sentencing of an offender on or after the repeal date in proceedings for an offence to which the repealed Act applied immediately before the repeal date, but not to the sentencing of an offender who pleads guilty, on or after the repeal date, at any time after being committed for trial.
(2) The repeal of the repealed Act does not affect a sentence imposed before the repeal date.
62E Continued operation of certain protections and offences
The following provisions of the repealed Act continue to apply (as if the Act had not been repealed)--
(a) section 6 (4) of the repealed Act, to and in respect of the admissibility of evidence of anything said or admission made (as referred to in that provision) before the repeal date, in any proceedings before a court, tribunal or body commenced before, or on or after, that date,
(b) section 9 (3) (as qualified by section 9 (7)) of the repealed Act, to and in respect of a pre-conference disclosure certificate filed with the Local Court before the repeal date, in relation to any Local Court proceedings with respect to the matters set out in it commenced before, or on or after, the repeal date,
(c) section 12 (5) of the repealed Act, to and in respect of a compulsory conference certificate filed before the repeal date,
(d) section 13 of the repealed Act, to and in respect of--(i) the production and admissibility of a compulsory conference certificate filed before the repeal date (or a copy of such a certificate), in any proceedings before a court, tribunal or body commenced before, or on or after, that date, and(ii) a disclosure of a compulsory conference certificate filed before the repeal date or a copy of such a certificate (or any of its contents) that occurs on or after the repeal date,Note : Section 13 (5) of the repealed Act creates an offence of disclosing the contents of a filed compulsory conference certificate (or copy) in contravention of section 13 (1) of the repealed Act.
(e) section 14 of the repealed Act, to and in respect of a disclosure of information referred to in that section that occurs before, or on or after, the repeal date.
62F General
(1) The provisions of this Part are subject to any regulations made under clause 1.
(2) Except to the extent otherwise provided by this Part, nothing in this Part affects the application of section 30 of the Interpretation Act 1987 .
Part 22 - Provision consequent on enactment of Graffiti Legislation Amendment Act 2012
63 Conditions of community service orders
The amendments made by the Graffiti Legislation Amendment Act 2012 apply to community service orders made in relation to offences committed after the commencement of the amendments.
Part 23 - Provision consequent on enactment of Crimes (Sentencing Procedure) Amendment (Provisional Sentencing for Children) Act 2013
64 Provisional sentencing
Division 2A of Part 4, as inserted by the Crimes (Sentencing Procedure) Amendment (Provisional Sentencing for Children) Act 2013 , applies in respect of any sentence imposed after the commencement of that Division (including for an offence committed before that commencement).
Part 24 - Provision consequent on enactment of Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act 2013
65 Operation of amendments
An amendment made by the Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act 2013 extends to an offence committed before the commencement of the amendment but does not affect any sentence imposed before the commencement of the amendment.
Part 25 - Provision consequent on enactment of Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014
66 Existing offences and proceedings
The amendments made to this Act by the Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 apply to the determination of a sentence for an offence whenever committed, unless--
(a) the court has convicted the person being sentenced of the offence, or
(b) a court has accepted a plea of guilty and the plea has not been withdrawn,before the commencement of the amendments.
Part 26 - Provision consequent on Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014
67 Application of amendments
The amendments made to section 28 of this Act by the Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014 apply to the determination of a sentence for an offence whenever committed, unless--
(a) the court has convicted the person being sentenced of the offence, or
(b) a court has accepted a plea of guilty and the plea has not been withdrawn,before the commencement of the amendments.
Part 27 - Provision consequent on enactment of Crimes Legislation Amendment (Child Sex Offences) Act 2015
68 Standard non-parole periods
The amendments made to this Act by the Crimes Legislation Amendment (Child Sex Offences) Act 2015 do not apply to offences committed before the commencement of the amendments.
Part 28 - Provision consequent on enactment of Crimes (Sentencing Procedure) Amendment (Firearms Offences) Act 2015
69 Standard non-parole periods
An amendment made to this Act by the Crimes (Sentencing Procedure) Amendment (Firearms Offences) Act 2015 applies only in respect of an offence committed, or alleged to have been committed, on or after the commencement of the amendment.
Part 29 - Provisions consequent on enactment of Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017
Division 1 - Preliminary
70 Definitions
In this Part--
"amending Act" means the Crimes (Sentencing Procedure) Amendment (Sentencing
Options) Act 2017 .
"breach" of an order or bond includes a failure to comply with the obligations
of the order or bond.
"commencement day" means the day on which the amending Act commences.
"Parole Authority" means the State Parole Authority constituted under the
Crimes (Administration of Sentences) Act 1999 .
"sentencing legislation" means the Crimes (Sentencing Procedure) Act 1999 and
the Crimes (Administration of Sentences) Act 1999 as respectively in force at
any relevant time.
Division 2 - Existing bonds and orders
71 Existing home detention orders under section 6
(1) This clause applies to a home detention order (
"the home detention order" ) made under section 6 before its repeal by the amending Act and in force immediately before the commencement day. A reference in this clause to the home detention order includes a reference to the sentence of imprisonment that is being served by way of home detention, including any period during which the offender is required to be subject to a parole order.
(2) The home detention order is taken to be an intensive correction order (
"the intensive correction order" ) made under section 7 as substituted by the amending Act.
(3) The sentence of imprisonment served by way of the home detention order is taken to be a sentence of imprisonment served by way of the intensive correction order.
(4) The intensive correction order is on the commencement day subject only to--(a) the standard conditions of an intensive correction order, and(b) a home detention condition, and(c) any conditions imposed under section 103 (1) (b) or (c) or section 103 (2) (a) of the Crimes (Administration of Sentences) Act 1999 and in force immediately before the commencement day in respect of the home detention order, and(d) any other conditions prescribed by or determined under the regulations.
(5) Subject to this Act and the Crimes (Administration of Sentences) Act 1999 , the intensive correction order operates for the same term as the home detention order.
(6) A parole order made in relation to the home detention order ceases to have effect on and from the commencement day.
(7) If a home detention order includes a period in which the offender is required to be subject to a parole order, the period during which the offender would have been subject to the parole order is to be served subject to the standard conditions of the intensive correction order only.
(8) Without limitation, the regulations may make provision for or with respect to conditions that apply to intensive correction orders referred to in this clause.
Note : Clause 125 of Schedule 5 to the Crimes (Administration of Sentences) Act 1999 provides for the manner in which the Parole Authority is to exercise its functions under section 81A of that Act (Conditions--Parole Authority) in relation to the conditions of an intensive correction order referred to in this clause.
72 Existing intensive correction orders under section 7
(1) This clause applies to an intensive correction order (
"the intensive correction order" ) made under section 7 before its substitution by the amending Act and in force immediately before the commencement day.
(2) The intensive correction order is taken to have been made under section 7 as substituted by the amending Act.
(3) The intensive correction order is on the commencement day subject only to--(a) the standard conditions of an intensive correction order, and(b) any conditions imposed under section 81 (3) of the Crimes (Administration of Sentences) Act 1999 and in force immediately before the commencement day in respect of the intensive correction order, and(c) a condition that requires the offender to undertake a minimum of 32 hours of community service work a month, as directed by a community corrections officer, and(d) any other conditions prescribed by or determined under the regulations.
(3A) An offender who is subject to a condition imposed under subclause (3) (c) is subject to the same obligations that are prescribed for the purposes of section 82 of the Crimes (Administration of Sentences) Act 1999 for an offender who is subject to a community service work condition of an intensive correction order.
(4) Sections 163 and 164 of the Crimes (Administration of Sentences) Act 1999 as in force on or after the commencement day apply to the intensive correction order in respect of action that may be taken for a breach of the order.
(5) The conditions imposed on the intensive correction order by the court under section 81 of the Crimes (Administration of Sentences) Act 1999 as in force before the commencement day cease to apply to the order. This subclause does not limit subclause (3) or (4).
(6) The offender is compliant with the community service work condition referred to in subclause (3) (c) which provides for a minimum of 32 hours of community service work a month--(a) to the extent the offender worked the scheduled hours at a work site, if the work was performed in accordance with directions of a community corrections officer or supervisor, including--(i) tea and meal breaks to which the offender is entitled, and(ii) time spent travelling to and from the work site, that a community corrections officer considers appropriate, and(b) to the extent (if any) the offender did not work the scheduled hours, if the offender (within 7 days of the failure to work)--(i) provided a medical certificate to a community corrections officer that states the nature of the illness or injury and indicates that its nature or extent justifies the offender's failure to perform the work, or(ii) provided another reason to a community corrections officer for the failure to work and the officer is satisfied that the reason is valid, and(c) to the extent (if any) the offender did not work the scheduled hours, if--(i) work was cancelled or finished early for reasons such as, but not limited to, bad weather, lack of available supervision, an emergency situation or lack of equipment, and(ii) a community corrections officer is satisfied that the reasons are valid.
(7) A community corrections officer may vary or waive the obligation to provide a medical certificate under subclause (6) (b).
Note : Clause 125 of Schedule 5 to the Crimes (Administration of Sentences) Act 1999 provides for the manner in which the Parole Authority is to exercise its functions under section 81A of that Act (Conditions--Parole Authority) in relation to the conditions of an intensive correction order referred to in this clause.
73 Existing community service orders under section 8
(1) This clause applies to a community service order (
"the community service order" ) made under section 8 before its substitution by the amending Act and in force immediately before the commencement day.
(2) The community service order is taken to be a community correction order (
"the community correction order" ) made under section 8 as substituted by the amending Act.
(3) The community correction order is on the commencement day subject only to--(a) the standard condition referred to in section 88 (2) (b) as inserted by the amending Act (that the offender must appear before the court if called on to do so at any time during the term of the community correction order), and(b) a community service work condition, and(c) any other conditions prescribed by or determined under the regulations.
(4) Subject to this Act and the Crimes (Administration of Sentences) Act 1999 --(a) the community correction order is taken to specify the same number of hours required for the performance of community service work as were specified in the community service order (so that the number of hours remaining to be completed under the community service order is the number of hours to be completed under the community correction order), and(b) the community correction order expires--(i) 12 months from the date on which the order was made, if the required number of hours under the order is less than 300, or if the order is extended for any further period before the commencement day, at the end of that further period, or(ii) 18 months from the date on which the order was made, if the required number of hours under the order is 300 or more, or if the order is extended for any further period before the commencement day, at the end of that further period,
(4A) If the community service order has a condition that requires the offender to participate in a development program under section 90 as in force before the commencement day, the community correction order is subject to a condition that the offender must comply with an additional condition referred to in section 89 (2) (c) (a rehabilitation or treatment condition) until the obligations relating to the development program have been fulfilled.
(5) Without limitation, the regulations may make provision for or with respect to community service work required by or under community correction orders referred to in this clause.
74 Existing good behaviour bonds under section 9
(1) This clause applies to a good behaviour bond entered into under section 9 of this Act (
"the section 9 bond" ) before its substitution by the amending Act and in force immediately before the commencement day.
(2) The section 9 bond is taken to be a community correction order (
"the community correction order" ) made under section 8 as substituted by the amending Act.
(3) The community correction order is on conversion subject only to--(a) the standard conditions of a community correction order, and(b) any conditions referred to in section 95 (c) that were imposed on the section 9 bond before the commencement day and in force immediately before that day, and(c) any other conditions prescribed by or determined under the regulations.
(4) The community correction order expires on the date set by the sentencing court before the commencement day in relation to the section 9 bond.
(5) If a condition relating to supervision was imposed on the section 9 bond by a court before the commencement day and was in force immediately before that day, the offender is subject to such obligations in respect of the condition as may be prescribed by regulations made under the Crimes (Administration of Sentences) Act 1999 .
(6) Any warrant issued under section 98 in respect of the section 9 bond before the commencement day continues to have effect. The warrant authorises a police officer to arrest and bring the offender before a court to be dealt with for an alleged breach of the section 9 bond.
(7) An offender who is brought before a court on a warrant referred to in subclause (6) is to be dealt with under sections 107C and 107D of the Crimes (Administration of Sentences) Act 1999 .
(8) Section 89 (2A) as inserted by the amending Act applies to a good behaviour bond to which this clause applies.
75 Existing good behaviour bonds under section 10 (1) (b)
(1) This clause applies to a good behaviour bond entered into under section 10 (1) (b) (
"the section 10 bond" ) before its substitution by the amending Act and in force immediately before the commencement day.
(2) The section 10 bond is taken to be a conditional release order (
"the conditional release order" ) made under section 9 as substituted by the amending Act, without proceeding to conviction, pursuant to section 10 (1) (b) as in force on and after the commencement day.
(3) The conditional release order is on the commencement day subject only to--(a) the standard conditions of a conditional release order, and(b) any conditions referred to in section 95 (c) that were imposed on the section 10 bond before the commencement day and in force immediately before that day, and(c) any other conditions prescribed by or determined under the regulations.
(4) The conditional release order expires on the date set by the sentencing court before the commencement day in relation to the section 10 bond.
(5) If a supervision condition was imposed on the section 10 bond by a court before the commencement day and was in force immediately before that day, the offender is subject to such obligations in respect of the condition as may be prescribed by regulations made under the Crimes (Administration of Sentences) Act 1999 .
(6) Any warrant issued under section 98 in respect of a section 10 bond before the commencement day continues to have effect. The warrant authorises a police officer to arrest and bring the offender before a court to be dealt with for an alleged breach of the section 10 bond.
(7) An offender who is brought before a court on a warrant referred to in subclause (6) is to be dealt with under sections 108C and 108D of the Crimes (Administration of Sentences) Act 1999 (variations, breach and revocations).
(8) Section 99 (2A) as inserted by the amending Act applies to a good behaviour bond to which this clause applies.
76 Existing suspended sentence orders under section 12
(1) This clause applies to an order (
"the suspended sentence order" ) made under section 12 before its repeal by the amending Act--(a) suspending execution of a sentence of imprisonment, and(b) directing that the offender enter into a good behaviour bond,and in force immediately before the commencement day.
(2) The repeal of section 12 and any associated provisions does not affect the continuity of operation of the suspended sentence order. The order continues in force despite the repeal of that section, subject to this Act.
(3) This Act and the regulations continue to apply to and in respect of the following as if the amending Act had not been enacted--(a) the suspended sentence order and good behaviour bond,(b) the person subject to the order and bond,(c) action that may be taken for failure to comply with any of the conditions of the bond.
(4) If a court (under section 98 as previously in force but continuing to apply under subclause (3)) revokes the good behaviour bond--(a) the suspended sentence order ceases to have effect in relation to the sentence of imprisonment suspended by the order, and(b) the court must either--(i) order that the offender be sentenced or re-sentenced to imprisonment to be served in full-time detention, or(ii) make an intensive correction order under this Act, as amended by the amending Act, in respect of the offence concerned, and(c) this Act (including Part 4), as amended by the amending Act, applies to the sentencing or re-sentencing of the offender under this clause in the same way as it applies to the sentencing of an offender on a conviction, and(d) section 24 applies to the sentencing or re-sentencing of the offender under this clause in the same way as it applies to the sentencing of an offender on a conviction, but taking into account--(i) the fact that the offender has been the subject of the good behaviour bond, and(ii) anything done by the offender in compliance with the offender's obligations under the good behaviour bond, and(e) the offender who under this clause is sentenced or re-sentenced by a court for an offence has the same rights of appeal as the offender would have had if the offender had been sentenced by that court on being convicted of the offence.
(5) However, subclauses (2), (3) and (4) cease to have effect in relation to the suspended sentence order at the end of the period of 3 years commencing with the commencement day (unless the order had already expired or otherwise ceased to be in force).
(6) If the suspended sentence order was still in force immediately before the end of that period of 3 years, the offender is required to appear before the court and is to be re-sentenced. If the offender fails to appear, the court may issue a warrant for the offender's arrest.
(7) Without limitation, the regulations may make provision for or with respect to the revocation of the suspended sentence order and for the re-sentencing of the offender.
76A Action for breaches of expired suspended sentence orders
(1) This clause applies to an order (
"the suspended sentence order" ) made under section 12 before its repeal by the amending Act suspending execution of a sentence of imprisonment and directing that the offender enter into a good behaviour bond, if--(a) the bond was breached before the commencement day for the repeal of section 100, and(b) the bond had expired before that day, and(c) action in respect of the breach had not been commenced or completed before that day.
(2) The breach of the bond may be dealt with or continue to be dealt with on or after that day under this Act and the regulations as if the amending Act had not been enacted.
(3) If a court (under section 98 as previously in force but continuing to apply under subclause (2)) revokes the bond--(a) the suspended sentence order ceases to have effect in relation to the sentence of imprisonment suspended by the order, and(b) the court must either--(i) order that the offender be sentenced or re-sentenced to imprisonment to be served in full-time detention, or(ii) make an intensive correction order under this Act, as amended by the amending Act, in respect of the offence concerned, and(c) this Act (including Part 4), as amended by the amending Act, applies to the sentencing or re-sentencing of the offender under this clause in the same way as it applies to the sentencing of an offender on a conviction, and(d) section 24 applies to the sentencing or re-sentencing of the offender under this clause in the same way as it applies to the sentencing of an offender on a conviction, but taking into account--(i) the fact that the offender has been the subject of the good behaviour bond, and(ii) anything done by the offender in compliance with the offender's obligations under the good behaviour bond, and(e) the offender who under this clause is sentenced or re-sentenced by a court for an offence has the same rights of appeal as the offender would have had if the offender had been sentenced by that court on being convicted of the offence.
77 References in other legislation
(1) Except in so far as the context or subject matter otherwise indicates or requires or the regulations otherwise provide, a reference (however expressed) in another Act, or statutory rule under another Act, to--(a) a home detention order, is taken to include a reference to an intensive correction order that is subject to a home detention condition, and(b) a community service order, is taken to include a reference to a community correction order, and(c) a good behaviour bond, is taken to include a reference to a community correction order or a conditional release order or both.
(2) A reference in any legislation to an
"assigned officer" (within the meaning of the Crimes (Administration of Sentences) Act 1999 ) is taken to include a reference to a community corrections officer.
78 Variations of conditions of converted orders
(1) Subject to subclause (2), nothing in clauses 71-75 prevents the imposition, variation or revocation (in accordance with this Act) of conditions referred to in those clauses after the commencement day.
(2) However, in the case of an application made to a court (under section 89, 90, 99 or 99A) for the imposition, variation or revocation of a condition on--(a) the community correction order referred to in clause 73 (2) or 74 (2), or(b) the conditional release order referred to in clause 75 (2),the court must, as far as practicable, not make an order that would result in the conditions of the community correction order or conditional release order being more onerous than conditions that were available, in comparable circumstances immediately before the commencement day, for the relevant community service order, section 9 bond or section 10 bond.
Division 3 - Periodic detention orders
79 Application of this Division
This
Division applies to a periodic detention order (
"the periodic detention order" )--
(a) made before the repeal of section 6 (Periodic detention) by the Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 , and
(b) continued in force by that Act after that repeal.
80 Existing periodic detention orders
(1) This clause applies to the periodic detention order to which this Division applies and that was in force immediately before the commencement day.
(2) The periodic detention order ceases to apply to the offender named in the order on and from the commencement day.
(3) The Commissioner must notify the court that sentenced the offender, or a court prescribed by the regulations (
"the court" ), of that fact within 14 days commencing with the commencement day, and provide the court with such information about the offender and the periodic detention order as may be prescribed by the regulations.
(4) On being notified under subclause (3), the court may call on the offender to appear before it on a date to be fixed by the court to be re-sentenced.
(5) If the offender fails to appear, the court may issue a warrant for the offender's arrest.
(6) When re-sentencing the offender, the court must, without limitation, take into account--(a) the gravity of the offence for which the periodic detention order was made, and(b) the offender's record of performance during periodic detention and compliance with applicable requirements of periodic detention, and(c) the offender's current circumstances.
(7) The following information, if available, about the offender is, at the request of the court, to be provided by the Commissioner--(a) a copy of the relevant assessment report, offender declaration and periodic detention order,(b) details of the offender's compliance with the requirements of the periodic detention order,(c) the number of detention periods completed and outstanding,(d) relevant circumstances of any breach of the periodic detention order,(e) details of any relevant action taken by the Parole Authority,(f) any other information available from its records that Corrective Services NSW considers relevant.
80A Offenders in custody following warrant
(1) This clause applies to an offender subject to a periodic detention order to which this Division applies and who was in custody immediately before the commencement day.
(2) The Commissioner must notify the court that the offender is in custody within 14 days of the commencement day.
(3) On being notified under subclause (2), the court may direct the Commissioner to cause the offender to be brought before the court on a date fixed by the court to be re-sentenced.
(4) Proceedings under this clause are taken to be proceedings for the administration of sentence for the purposes of clause 1 of Schedule 1 to the Bail Act 2013 .
(5) The court is to deal with the offender as if the offender were an offender arrested under clause 80.
81 Existing warrants for revoked periodic detention orders
(1) This clause applies where--(a) a warrant (
"the warrant" ) had been issued under section 181 of the Crimes (Administration of Sentences) Act 1999 or section 26 of the Periodic Detention of Prisoners Act 1981 in respect of a periodic detention order to which this Division applies, and(b) the warrant was in force immediately before the commencement day but the periodic detention order had been revoked before that day.
(2) The warrant continues in force after the commencement day.
82 Provisions regarding warrants referred to in clauses 80 and 81
(1) This clause applies to--(a) warrants issued under clause 80, and(b) warrants referred to in clause 81.
(2) A police officer who arrests or has custody of the offender named in a warrant to which this clause applies may convey the offender to the correctional centre named in the warrant and deliver the offender into the custody of the governor of that correctional centre.
(3) The Commissioner must notify the court that sentenced the offender, or a court of equivalent jurisdiction, within 14 days that the offender has been received into the custody of the governor of that correctional centre.
(4) On receiving notice from the Commissioner under subclause (3), the court must direct the Commissioner to cause the offender to be brought before the court to be re-sentenced on a date to be fixed by the court.
(4A) Proceedings under this clause are taken to be proceedings for the administration of sentence for the purposes of clause 1 of Schedule 1 to the Bail Act 2013 .
(4B) The following information, if available, about the offender is, at the request of the court, to be provided by the Commissioner--(a) a copy of the relevant assessment report, offender declaration and periodic detention order,(b) details of the offender's compliance with the requirements of the periodic detention order,(c) the number of detention periods completed and outstanding,(d) relevant circumstances of any breach of the periodic detention order,(e) details of any relevant action taken by the Parole Authority,(f) any other information available from its records that Corrective Services NSW considers relevant.
(5) Without limitation, the regulations may make provision for or with respect to--(a) the return to custody of offenders subject to warrants to which this clause applies, and(b) the re-sentencing of offenders under this clause, and(c) the issue and execution of warrants for those purposes.
Division 4 - Other provisions
82A Existing assessment reports
(1) If an assessment report was prepared on an offender for the purposes of section 78 of the Act, as in force before the repeal of that section by the amending Act, the report is taken to be an assessment report for the purposes of section 17D (2) and a further report is not required.
(2) If an assessment report was prepared on an offender for the purposes of section 86 of the Act, as in force before the repeal of that section by the amending Act, the report is taken to be an assessment report for the purposes of section 17D (4) and a further report is not required.
83 Court to take community service order or good behaviour bond into account when sentencing
In sentencing an offender, the court must, under section 24, also take into account--
(a) in the case of an offender who is being sentenced as a result of failing to comply with the offender's obligations under a community service order or good behaviour bond to which a clause of Division 2 applies--(i) the fact that the person has been the subject of such an order or bond, and(ii) anything done by the offender in compliance with the offender's obligations under the order or bond, and
(b) in the case of an offender who is being sentenced as a result of deciding not to participate in, or to continue to participate in a good behaviour bond to which a clause of Division 2 applies, anything done by the offender in compliance with the offender's obligations under the good behaviour bond.
84 Correction and adjustment of sentences
(1) A reference in section 43 to imposing a sentence extends to the making of a home detention order, a community service order, an order under section 12 or an order that provides for an offender to enter into a good behaviour bond.
(2) Section 43 extends to authorising the court to sentence the offender, or convict and sentence the offender, in accordance with this Act as amended by the amending Act, as if the order had not been made.
85 Procedure following failure to enter into good behaviour bond
If a person--
(a) was the subject of an order under section 9 (as in force before the date of the substitution of that section by the amending Act) directing the person to enter into a good behaviour bond, and--(i) the order was in force immediately before that date, and(ii) the person had not entered into such a bond in accordance with the order before that date, or
(b) was the subject of an order under section 10 (1) (b) (in force immediately before the date of the substitution of that paragraph by the amending Act) discharging the person on condition that the person enter into a good behaviour bond, and--the court may sentence the offender, or convict and sentence the offender, in accordance with this Act as amended by the amending Act, as if the order had not been made.(i) the order was in force immediately before that date, and(ii) the person had not entered into such a bond in accordance with the order before that date,
86 Appeals in respect of converted order and bonds
(1) This clause applies to an order or bond (
"an original order or bond" ) referred to in clause 71 (1), 72 (1), 73 (1), 74 (1) or 75 (1).Note : Clauses 71-75 deal respectively with existing home detention orders, intensive correction orders, community service orders, section 9 bonds and section 10 bonds, which were made or entered into before the commencement day.
(2) An appeal in respect of an original order or bond that was pending immediately before the commencement day is not affected by the amending Act. However--(a) if the court hearing the appeal sentences or re-sentences the offender, it must do so in accordance with this Act as in force on and after the commencement day, or(b) to the extent the court confirms the original order or bond, this clause does not affect the operation of whichever of clauses 71-75 is relevant to the order.
(3) An appeal may be made in respect of an original order or bond on or after the commencement day as if the amending Act had not been enacted. However--(a) if the court hearing the appeal sentences or re-sentences the offender, it must do so in accordance with this Act as in force on and after the commencement day, or(b) to the extent the court confirms the original order or bond, this clause does not affect the operation of whichever of clauses 71-75 is relevant to the order.Note : This subclause does not confer a right of appeal where a right of appeal did not exist before the commencement day.
86A Applications to Supreme Court as to certain existing orders
(1) This clause applies in relation to a home detention order or intensive correction order referred to in section 176 of the Crimes (Administration of Sentences) Act 1999 and made under section 6 or 7 of this Act or section 165A of that Act before the commencement day.
(2) An application to the Supreme Court under that section in respect of an order to which this clause applies, and any proceedings in respect of the application, that were pending before the Court immediately before the commencement day are not affected by the amending Act.
(3) An application may be made on or after the commencement day to the Supreme Court under that section in respect of an order to which this clause applies.
(4) Any direction given by the Supreme Court under that section pursuant to an application referred to in this clause is given in respect of the intensive correction order or home detention order concerned as if the amending Act had not been enacted.
86B Other transitional matters in respect of home detention orders
(1) Application to home detention orders This clause applies in respect of a home detention order made under section 6 before its repeal by the amending Act.
(2) Previous breaches Subclause (3) applies if a breach of a home detention order occurred or is suspected to have occurred before the repeal of section 6 by the amending Act and action under the sentencing legislation as in force before the commencement day had not been commenced or completed in respect of the breach.
(3) Action in respect of the breach may, on or after that day, be commenced or continued under the sentencing legislation in relation to the intensive correction order to which the home detention order was converted by the operation of this Schedule in the same way as action may be taken in respect of a breach of an offender's obligations under an intensive correction order made by a court on or after that day.
(4) Previous assessment for home detention If the Parole Authority referred an offender for assessment under section 165A (4) of the Crimes (Administration of Sentences) Act 1999 , before the commencement day, in relation to the making of an order for home detention following the revocation of an intensive correction order and the Parole Authority had not completed its functions under that section before that day in relation to the matter--(a) the assessment may be carried out on or after that day if it has not already been carried out, and(b) the assessment (whether received by the Parole Authority before that day or on or after that day) is taken to be an assessment as to the suitability of the offender for an intensive correction order with a home detention condition on or after that day, and(c) the Parole Authority may, if satisfied that it is appropriate to do so, make an intensive correction order.Note : See also subclause (12) as to the power of the Parole Authority to make intensive correction orders under this clause.
(5) Pending inquiries into home detention breaches If an inquiry by the Parole Authority under section 166 of the Crimes (Administration of Sentences) Act 1999 (relating to a suspected breach of an offender's obligations under a home detention order) was pending immediately before the commencement day--(a) the inquiry may be conducted or continue to be conducted by the Parole Authority on or after that day, and(b) any findings of the Parole Authority may be considered in connection with the exercise of the Authority's functions (including its functions under section 164 of that Act).
(6) Effect of existing revocation order A revocation order made by the Parole Authority under section 167 of the Crimes (Administration of Sentences) Act 1999 before the commencement day--(a) continues to have effect for the purposes of that Act, as amended by the amending Act, according to the terms of the order, and(b) is taken to be a revocation order to which section 164A of that Act applies.
(7) Existing reinstatement applications If an application for the reinstatement of a home detention order under section 168A (1) of the Crimes (Administration of Sentences) Act 1999 was pending immediately before the commencement day--(a) the application may be dealt with or continue to be dealt with by the Parole Authority on or after that day, and(b) the Parole Authority may, if satisfied that it is appropriate to do so, make an intensive correction order with a home detention condition and a supervision condition.Note : See also subclause (12) as to the power of the Parole Authority to make intensive correction orders under this clause.
(8) If an application for the reinstatement of an intensive correction order under section 168A (1A) of the Crimes (Administration of Sentences) Act 1999 was pending immediately before the commencement day--(a) the application may be dealt with or continue to be dealt with by the Parole Authority on or after that day, and(b) the Parole Authority may, if satisfied that it is appropriate to do so, make an intensive correction order with a supervision condition and at least 1 of the additional conditions referred to in section 73A of this Act.Note : See also subclause (12) as to the power of the Parole Authority to make intensive correction orders under this clause.
(9) Despite subclause (8) (b), the Parole Authority may make an intensive correction order under that paragraph without imposing any of the additional conditions referred to in section 73A of this Act if it considers that it is not necessary to do so because of exceptional circumstances.
(10) If an offender was, under section 168A (2) of the Crimes (Administration of Sentences) Act 1999 , referred for assessment in relation to the reinstatement of a home detention order or intensive correction order and the assessment was received by the Parole Authority before the commencement day but the Parole Authority had not completed its consideration of the assessment or the assessment is received by the Parole Authority on or after that day--(a) the Parole Authority may consider or continue to consider the assessment on or after that day, and(b) the Parole Authority may use the assessment when considering whether to make an intensive correction order under subclause (7) or (8) (as the case requires).
(11) Existing warrants made after revocation of home detention orders If a warrant that was issued under section 181 (1) of the Crimes (Administration of Sentences) Act 1999 before the commencement day in respect of a revoked home detention order, and that commits an offender to a correctional centre to serve the remainder of a sentence by way of full-time detention, was in force immediately before that day, the warrant--(a) continues in force on and after that day until it is executed, and(b) is taken to be issued under section 181 (1) of that Act as amended by the amending Act in respect of an intensive correction order revoked under that Act as amended by the amending Act, and(c) commits the offender to a correctional centre to serve the remainder of the sentence to which the order relates by way of full-time detention.
(12) New intensive correction orders For the purposes of an intensive correction order authorised to be made by the Parole Authority under subclause (4), (7) or (8)--(a) Part 5 of the Crimes (Sentencing Procedure) Act 1999 , as in force on or after the relevant commencement day, applies to and in respect of the Parole Authority and the offender in relation to the making of the intensive correction order in the same way as it applies to and in respect of a court and an offender in relation to the making of an intensive correction order by a court, and(b) the intensive correction order is taken to have been made by a court.
86C Other transitional matters in respect of intensive correction orders
(1) Application to intensive correction orders This clause applies in respect of an intensive correction order made under section 7 before its substitution by the amending Act.
(2) Previous breaches Subclause (3) applies if a breach of an intensive correction order occurred or is suspected to have occurred before the substitution of section 7 by the amending Act and action under the sentencing legislation as in force before the commencement day had not been commenced or completed in respect of the breach.
(3) Action in respect of the breach may, on or after that day, be commenced or continued under the sentencing legislation in relation to the intensive correction order to which the order was converted by the operation of this Schedule in the same way as action may be taken in respect of a breach of an offender's obligations under an intensive correction order made on or after that day.
(4) Applications relating to conditions If an application for the imposition of conditions on, or the variation of conditions of, an intensive correction order under section 81 (3) of the Crimes (Administration of Sentences) Act 1999 was pending before the sentencing court immediately before the commencement day--(a) the application is transferred to the Parole Authority to be dealt with by it instead of the court, and(b) the application may be dealt with or continue to be dealt with by the Parole Authority on or after that day as if the application had been made under section 81A of that Act, and(c) in considering the application, the Parole Authority may have regard to matters raised before the court before that day and may concur with any decisions made by the court in that connection or may deal with all or any matters afresh.
(5) Pending inquiries into breaches of intensive correction orders If an inquiry by the Parole Authority under section 162 of the Crimes (Administration of Sentences) Act 1999 (relating to a suspected breach of an offender's obligations under an intensive correction order) was pending immediately before the commencement day--(a) the inquiry may be conducted or continue to be conducted by the Parole Authority on or after that day, and(b) any findings of the Parole Authority may be considered in connection with the exercise of the Authority's functions (including its functions under section 164 of that Act).
(6) Effect of existing revocation order for intensive correction order A revocation order made by the Parole Authority under section 163 of the Crimes (Administration of Sentences) Act 1999 before the commencement day--(a) continues to have effect for the purposes of that Act, as amended by the amending Act, according to the terms of the order, and(b) is taken to be a revocation order to which section 164A of that Act applies.
(7) Existing reinstatement applications If an application for the reinstatement of an intensive correction order under section 165 of the Crimes (Administration of Sentences) Act 1999 was pending immediately before the commencement day--(a) the application may be dealt with or continue to be dealt with by the Parole Authority on or after that day under that section as amended by the amending Act, and(b) that section as so amended applies to and in respect of the application (including the provisions relating to the assessment as to suitability and the making of an intensive correction order).
(8) Existing warrants made after revocation of intensive correction orders If a warrant that was issued under section 181 (1) of the Crimes (Administration of Sentences) Act 1999 before the commencement day in respect of a revoked intensive correction order, and that commits an offender to a correctional centre to serve the remainder of a sentence by way of full-time detention, was in force immediately before that day, the warrant--(a) continues in force on and after that day until it is executed, and(b) is taken to be issued under section 181 (1) of that Act as amended by the amending Act in respect of an intensive correction order revoked under that Act as amended by the amending Act, and(c) commits the offender to a correctional centre to serve the remainder of the sentence to which the order relates by way of full-time detention.
86D Other transitional matters in respect of community service orders
(1) Application to community service orders This clause applies in respect of a community service order made under section 8 before its substitution by the amending Act.
(2) Previous breaches Subclause (3) applies if a breach of a community service order occurred or is suspected to have occurred before the substitution of section 8 by the amending Act and action under the sentencing legislation as in force before the commencement day had not been commenced or completed in respect of the breach.
(3) Action in respect of the breach may, on or after that day, be commenced or continued under the sentencing legislation in relation to the community correction order to which the order is converted by the operation of this Schedule in the same way as action may be taken in respect of a breach of an offender's obligations under a community correction order made on or after that day.
(4) Pending extension applications If an application for the extension of the relevant maximum period for a community service order under section 114 of the Crimes (Administration of Sentences) Act 1999 was pending immediately before the commencement day--(a) the application may be dealt with or continue to be dealt with by the court on or after that day, and(b) the application is taken to be an application duly made under section 89 of this Act in respect of the relevant community service work condition of the community correction order (to which the community service order was converted by the operation of this Schedule), and(c) the court may make any order under section 89 that it may make in respect of an application made under that section.
(5) Existing revocation applications If an application for the revocation of a community service order under section 115 of the Crimes (Administration of Sentences) Act 1999 was pending immediately before the commencement day--(a) the application may be dealt with or continue to be dealt with by the court on or after that day, and(b) in the case of an application made under section 115 (2) (a), the application is taken to be an application made, for the purposes of section 107C of that Act as amended by the amending Act, to revoke the community correction order to which the community service order is converted by the operation of this Schedule, and(c) in the case of an application made under section 115 (2) (b), the court may continue to deal with the application under section 115 as in force immediately before the commencement day.
(6) Existing warrants issued in extension proceedings If a warrant issued under section 116 of the Crimes (Administration of Sentences) Act 1999 before the commencement day, in connection with an application for the extension of the period for which an offender's community service order is to remain in force, was in force immediately before that day, the warrant--(a) continues in force on and after that day until it is executed, and(b) authorises the offender to be brought before the relevant court.
(7) Existing warrants issued in revocation proceedings If a warrant issued under section 116 of the Crimes (Administration of Sentences) Act 1999 before the commencement day, in connection with an application under section 115 of that Act for the revocation of an offender's community service order, was in force immediately before that day, the warrant--(a) continues in force on and after that day until it is executed, and(b) authorises the offender to be brought before the relevant court.
(8) Action for breaches of expired community service orders Subclause (9) applies if--(a) a community service order was breached before the repeal of section 115 of the Crimes (Administration of Sentences) Act 1999 by the amending Act, and(b) the order had expired not later than 1 month before that day, and(c) action in respect of the breach had not been commenced or completed before that day.
(9) The breach may be dealt with or continue to be dealt with on or after that day under sections 107C and 107D of the Crimes (Administration of Sentences) Act 1999 and, for that purpose, those provisions apply despite the expiry of the order but only apply in respect of matters arising during the term of the order.
86E Other transitional matters in respect of good behaviour bonds
(1) Application This clause applies in respect of a good behaviour bond entered into under section 9 (a
"section 9 bond" ) or section 10 (1) (b) (a
"section 10 bond" ) before their substitution by the amending Act.
(2) Previous breaches Subclause (3) applies if a breach of a good behaviour bond occurred or is suspected to have occurred before the commencement day and action under the sentencing legislation as in force before that day had not been commenced or completed in respect of the breach.
(3) Action in respect of the breach may, on or after that day, be commenced or continued under the sentencing legislation in relation to the community correction order or conditional release order to which the bond is converted by the operation of this Schedule in the same way as action may be taken in respect of a breach of an offender's obligations under such an order made on or after that day.
(4) Intervention program conditions Subclause (5) applies if before the commencement day a court referred, under section 95B, an offender for assessment as to the suitability of the offender to participate in an intervention program and the report was received before, or is received on or after, that day.
(5) The court may, if it decides to make a community correction order or conditional release order in respect of the offender on or after that day, impose a further condition requiring the offender to participate in an intervention program and to comply with any intervention plan arising out of the program.
(6) Existing breach proceedings If any proceedings were pending before a court immediately before the repeal of section 98 of the Crimes (Sentencing Procedure) Act 1999 in respect of a breach of a section 9 bond or section 10 bond--(a) the proceedings are to continue to be dealt with by the court, and(b) the breach may be dealt with or continue to be dealt with on or after that day under sections 107C and 107D or sections 108C and 108D (as the case requires) of the Crimes (Administration of Sentences) Act 1999 in relation to the community correction order or conditional release order to which the bond is converted by the operation of this Schedule, and(c) in considering the breach, the court may have regard to matters raised before the court before that day and may concur with any decisions made by the court in that connection or may deal with all or any matters afresh.
(7) Refusal to participate in intervention program If an offender who was subject to a section 9 bond or section 10 bond decided under section 99A not to participate or to continue to participate in an intervention program or an intervention plan arising out of the program and action had not been taken or completed under that section before the commencement day--(a) the matter may be dealt with or continue to be dealt with on or after that day by taking action under sections 107C and 107D or sections 108C and 108D (as the case requires) of the Crimes (Administration of Sentences) Act 1999 in relation to the community correction order or conditional release order to which the bond is converted by the operation of this Schedule, and(b) for that purpose, the decision is taken to be a breach of the order.
(8) Action for breaches of expired bonds Subclause (9) applies if--(a) a section 9 bond or section 10 bond was breached before the commencement day for the repeal of section 100, and(b) the bond had expired before that day, and(c) action in respect of the breach had not been commenced or completed before that day.
(9) The breach may be dealt with or continue to be dealt with on or after that day under sections 107C and 107D or sections 108C and 108D (as the case requires) of the Crimes (Administration of Sentences) Act 1999 in relation to the community correction order or conditional release order to which the bond is converted by the operation of this Schedule and, for that purpose--(a) the breach is taken to be a breach of the order, and(b) those provisions apply despite the expiry of the bond but only apply in respect of matters arising during the term of the bond.
86F Transitional provisions in respect of certain warrants
(1) If a warrant that was issued under section 181 (1) of the Crimes (Administration of Sentences) Act 1999 in respect of a revoked parole order, and that commits an offender to a correctional centre to serve the remainder of a sentence by way of full-time detention, was in force immediately before the commencement day, the warrant--(a) continues in force on and after that day until it is executed, and(b) is taken to be issued under section 181 (1) of that Act as amended by the amending Act in respect of a parole order revoked under that Act as so amended, and(c) commits the offender to a correctional centre to serve the remainder of the sentence to which the order relates by way of full-time detention.
(2) If a warrant that was issued under section 181 (1A) of the Crimes (Administration of Sentences) Act 1999 , and that commits an offender to a correctional centre pending the Parole Authority's decision as to whether or not to make a home detention order, was in force immediately before the commencement day, the warrant--(a) continues in force on and after that day until it is executed, and(b) commits the offender to a correctional centre pending the Parole Authority's decision as to whether or not to make an intensive correction order.
87 Regulations
(1) The regulations made under clause 1 in relation to the amending Act or under another clause of this Part have effect despite anything to the contrary in this Part.
(2) To avoid doubt, the regulations made under clause 1 may be made in relation to amendments made by Schedules 1-4 to the amending Act. Nothing in this subclause affects any power under another Act that is amended by Schedule 3 or 4 to the amending Act to make regulations of a savings or transitional nature.
(3) The regulations made under clause 1 may make separate savings and transitional provisions or amend this Part to consolidate the savings and transitional provisions.
(4) This clause does not affect the meaning or construction of any other Part of this Schedule.
Part 30 - Provisions consequent on enactment of Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017
88 Definitions
In this Part--
"amending Act" means the Justice Legislation Amendment (Committals and Guilty
Pleas) Act 2017 .
"existing proceedings" means proceedings for an offence commenced before the
amendment of the former sentencing provisions by the amending Act.
"former sentencing provisions" means Part 3 of this Act, as in force before
its amendment by the amending Act.
89 Existing proceedings
The former sentencing provisions continue to apply to existing proceedings as if those provisions had not been amended by the amending Act.
90 Previous offences
This Act, as amended by the amending Act, extends to proceedings for an offence committed before the amendment of the former sentencing provisions by the amending Act, if proceedings for the offence commenced on or after that amendment.
Part 31 - Provision consequent on enactment of Criminal Legislation Amendment (Child Sexual Abuse) Act 2018
91 Standard non-parole periods
The Table to Division 1A of Part 4 of this Act, as in force immediately before its amendment by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 , continues to apply in respect of an offence against section 61M (1) or (2) of the Crimes Act 1900 committed before that amendment.
Part 32 - Provision consequent on enactment of Crimes Legislation Amendment (Victims) Act 2018
92 Application of amendments
Each of the following provisions as substituted by the Crimes Legislation Amendment (Victims) Act 2018 applies only to proceedings that are commenced after the relevant substitution--
(a) Division 2 of Part 3 of this Act,
(b) Division 2 of Part 2 of the Crimes (Sentencing Procedure) Regulation 2017 .
Part 33 - Provision consequent on enactment of Justice Legislation Amendment Act 2019
93 Standard non-parole periods
The Table to Division 1A of Part 4 of this Act, as in force immediately before its amendment by the Justice Legislation Amendment Act 2019 , continues to apply in respect of an offence against section 203E of the Crimes Act 1900 committed before that amendment.
Part 34 - Provision consequent on enactment of Crimes Legislation Amendment (Loss of Foetus) Act 2021
94 Application of amendments
(1) Section 28(2) and the new definition of family victim apply only to proceedings that are commenced on or after the commencement of the amendment Act, Schedule 2.
(2) In this clause--
"amendment Act" means the Crimes Legislation Amendment (Loss of Foetus) Act 2021 .
"new definition" means the definition inserted in section 26 by the amendment Act.
Part 35 - Provision consequent on enactment of Crimes (Sentencing Procedure) Amendment Act 2022
95 Sentencing patterns and practices
The amendments made to this Act by the Crimes (Sentencing Procedure) Amendment Act 2022 do not apply to proceedings that commenced before the commencement of the amendments.